The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
ORDER, AMENDED FINDINGS AND RECOMMENDATIONS
Petitioner, Brian Hogue, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of life imprisonment after pleading guilty to first degree murder with a firearm enhancement in 1977. Petitioner challenges the February 2007 decision by Governor Schwarzenegger reversing the October 2006 decision by the Board of Parole Hearings (the "Board") which had granted Petitioner parole. Petitioner presents several claims in his petition; specifically: (1) the Governor's reversal of Petitioner's parole release date was an abuse of discretion as there was no evidence to support the reversal ("Claim I"); (2) the Governor was without authority to revoke Petitioner's parole as his decision violates the Ex Post Facto Clause ("Claim II"); and (3) failure of the Board to set a parole date violates Petitioner's due process and equal protection rights ("Claim III"). For the following reasons, the December 14, 2010 findings and recommendations are vacated and it is recommended that Petitioner's habeas petition be denied.
II. FACTUAL*fn1 AND PROCEDURAL BACKGROUND On the evening of May 1, 1977, Brian Hogue shot and killed 61-year-old Fred Piperio. Brian went to a bar, where he drank a few beers. Armed with a loaded handgun, Brian demanded cash from Fred while Fred was counting money from the register. Fred gave Brian cash. Brian then instructed Fred to go into the bathroom and lie down. Again, Fred complied. At that point, Brian took out his gun and shot Fred in the back of the head, killing him. Brian left the bar.
Brian told a friend that he was going to the Redding Municipal Airport. The friend informed police and Brian was arrested at the airport. He had more than $1,000 in his possession. Brian admitted to police that he robbed the victim and shot him in the back of the head.
Mr. Hogue pled guilty to first-degree murder and was sentenced to life in prison plus a consecutive five-years-to-life sentence for using a firearm.
(Resp't's Answer, Ex. A at p. 97.) In October 2006, the Board conducted a subsequent parole consideration hearing. The Board ultimately concluded that Petitioner was suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. In February 2007, the Governor reversed the Board's decision and found that Petitioner would pose an unreasonable risk of danger to society if released at that time.
Petitioner challenged the Governor's decision in the County of Shasta Superior Court. The Superior Court denied Petitioner's state habeas petition in a decision on October 20, 2007. The California Court of Appeal, Third Appellate District summarily denied Petitioner's state habeas petition on December 6, 2007. The California Supreme Court summarily denied Petitioner's state habeas petition on March 12, 2008. Petitioner filed the instant federal habeas petition in May 2008.
On December 14, 2010, the undersigned issued findings and recommendations which recommended granting Petitioner federal habeas relief on Claim I. Respondent filed objections to the findings and recommendations and Petitioner filed a reply to Respondent's objections. On January 25, 2011, District Judge Frank C. Damrell referred the matter back to the undersigned in light of the United States Supreme Court's decision in Swarthout v. Cooke, No. 10-333, -- S.Ct.--, 2011 WL 197627 (Jan. 24, 2011) (per curiam).
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v.Andrande, 538 U.S. 63 (2003). Recently, the United States Supreme Court reiterated that "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by a showing there was no reasonable basis for the state court to deny relief." Harrington v. Richter, No. 09-587, -- S.Ct. --, 2011 WL 148587, at *9 (Jan. 19, 2011).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned decision on the merits came from the County of Shasta Superior Court with respect to Claims I and II. With respect to Claim III, the California Supreme Court denied that Claim on the merits without discussion. Thus, with respect to Claim III the standard is also whether the state court was objectively unreasonable in its application of clearly established federal law.
IV. PETITIONER'S CLAIMS ...